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When Copyright Met Privacy

As I’ve mentioned in an earlier post, I have broken copyright law and probably will do so again. I’ve made copies of books and articles–sometimes using the crude tools of the late 20th century (aka: the copy machine), and other times using far-easier tools like the “right click.” I’ve also copied “records” onto cassette tapes, burned CDs from store-bought ones, and received dozens of hours of music on flash drives from friends. Add to that the number of times I’ve grabbed an image from a website to use in a presentation of some sort. I know that these things are technically no-nos, but I don’t lose much sleep over them because my “piracy” is incredibly small, benefits only me, and doesn’t prevent me from spending a significant part of my income consuming art of every kind. If I were to stop “infringing” on copyrights tomorrow, I would likely spend the exact same amount each year on music, books, tickets to performances, and other arts products.

For most of my life, it has been nearly impossible for record labels and book publishers to detect my acts of copying, which is perhaps why they haven’t lost much sleep over it either (except while targeting technologies, like the VCR, the DAT machine and digital mini disks, RIP). They also haven’t seemed too concerned about used bookstores and the second-hand bin in record stores (for all that remain of those businesses), even though every sale of used music/book media could arguably be said to be one less of new media, with the profits of those sales not returning to the originators of the work or their publishers.

(I have to pause here to mention that I do believe in copyright. I believe in the validity and purpose of intellectual property. Artists and creators deserve to get paid and should be able to pursue violations of their copyrights when it is appropriate, and when that pursuit is not unduly elevated over other valued rights, and especially when the rights-violation is egregious. That said, there have to be limits on what any rights-holder should be allowed to do in pursuit of the protection of their stake. This blog should never be construed to be some libertarian screed against intellectual property rights, or an apologia for ruthless entrepreneurs who happily dismiss well-designed business models (and the people they feed) in the self-serving name of “innovation” and something chimerical, though interesting, called the “sharing economy.”)

The major rights-holders are now very motivated to prevent me and you from making copies of music and books and movies and so on. This has very little to do with the interests of working artists, but more to do with the technical ease with which we can now copy things, and also with the myriad ways that such copying can be observed and tracked like never before. The industry is also inventing new ways to control resale and personal sharing, and this is very novel. For example, books that you buy for a Kindle can’t be handed off to someone else. You can just barely “loan” a Kindle book to someone, but the terms suck. The enormous companies that control the majority of copyrights and eBook publishing are finding new ways to follow you into the formerly private spaces of your library and music collection–your home–to monitor and modify how you experience the creative works you may or may not have directly paid for.

I don’t blame them for wanting to do this: they are corporations, which are predatory organisms whose evolutionary mandate is to consume every ounce of profit that can possibly be consumed. But I can object to how they go about it. A feature of sharing, reselling and copying of books and music that we previously took for granted was that it was largely undetectable–it took place in the sanctum of your homes, your living rooms. Places, it seems, that are no longer truly private. Many “infringing” acts still are undetectable, as they should be. Just like historically unregulated acts like reselling a painting without paying a fee to the painter (or his publisher) or donating a book to your library book sale. With the advent of new ways to consume media, like the Kindle and iTunes, and due to the logging and tracking technologies embedded in internet and mobile device use, it has become very easy to detect and control all sorts of previously unrestrained activities over creative works, and rightsholders are very interested in doing just that.

Consider this: During a major lawsuit against YouTube’s parent company, Google, by Viacom, who sought to collect damages from YouTube claiming they were illegally profiting from hosting copyrighted content, Viacom won the right to view YouTube’s website logs revealing information about every user, every viewer, and every video on the site. Although they eventually conceded to anonymizing the user data, we know that anonymization doesn’t really work, and that evidence of my guilty-pleasure binge of watching old Journey videos (at work no less, identifiable by my IP address for sure) some years ago was handed over to someone without my assent. This may seem like a small thing, except that this really is the thin end of the wedge. Privacy protections for what we do with our surfing habits are already tremendously weak. Rights-holding corporations are going to exploit that, and their lobbying power is very strong. There is something very fucked up about my casual video viewing habits being scooped up and entered into evidence as part of a lawsuit that had nothing to do with me. And it really could have gone much farther: Viacom specifically sought to view all of the videos on YouTube marked “private” by their owners. While that request wasn’t granted, I think it could have easily gone the other way. Do we own those “private” videos on YouTube? Should we have an expectation of privacy over our emotional outpourings, love-letters, and who-knows-what that falls into the category of a private YouTube video? Maybe, maybe not. Either way, the Viacoms of the world do not care. If they can demonstrate that our privacy rights are not as important as their copyrights, our already tattered privacy protections in the electronic worlds will be further eroded. Free speech, and even historical expectations of “ownership” are unimportant. What matters is that additional profits can be made or protected and all else is frivolous.

In the same way, and using the same logic that Amazon uses to control how we use eBooks, or that Apple controls how we use mp3s, or how media files are increasingly encoded with special signatures that govern whether or not or where they can be used, we should expect that, wherever possible, the industry is also watching our use, or could be forced to reveal that use to other interested parties from time to time, and that increasingly, what we do in our homes, with our art collections will no longer be our own damn business.

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3 thoughts on “When Copyright Met Privacy”

Well Mike, you’ve commented on my blog enough times. It’s time I returned the favor. Congrats on beginning to write about these issues.

I think you’re tossing a few incongruous elements together in this particular salad, but I’ll try to keep my response concise. As a general statement, I believe that if privacy is your primary concern and your focus is copyright holding corporations rather than data collecting corporations this may be a very dangerous misdirection to perform at a very precarious time. Without enumerating the many examples, suffice to say that if a Viacom or a Disney wants your information, it has to get it by court order, whereas you’re giving that same information away for free to Google, Facebook, Twitter, and Amazon — all companies in the business of doing whatever they want with your data for their profit. And when I say precarious time, I’m referring to the economy and the destructive force of Silicon Valley on the middle class. I’m very concerned that people will wring their hands worrying about the Viacoms of the world invading their privacy while missing the fact that the VCs of Silicon Valley are building in job-killing technologies AND eroding privacy at the same time.

Just recently, there was a leak of the new Avengers trailer, which was discovered on Google Drive, and Disney/Marvel was granted a subpoena directing Google to turn over identifying information of the anonymous user who loaded that file. The individual who took the file is guilty of stealing property from his employer — because only someone in the post-production chain could have had access — no different from someone taking proprietary technology out of a tech employer’s R&D Labs. Still, some may view the subpoena as an invasion of privacy despite the clear nature of the theft, and they will again overlook the irony that Disney needs a judge to get the same data that Google has access to for nothing.

As for the secondary use of digital media, it’s a slightly tricky matter but not one that really gets into privacy. The question is whether or not First Sale doctrine, which gives you the right to do whatever you want with a book or record you bought, should apply in the digital market. It may seem reasonable on the face of it that you should be able to transfer or resell a song you bought on iTunes just like you can with a CD you bought at the record store, but it’s nowhere near that simple and not because of greed or a desire to control our lives.

I wrote a post about Digital First Sale and sat on a panel discussing the issue, and my major problems with transporting First Sale into the digital market are the following: 1) A “secondary” market for digital goods will artificially drop prices even further than they have been dropped already, and the only real beneficiaries will be the companies involved in the transactions — iTunes, Amazon, ReDigi. Consumers already get a great deal on goods, and we cannot continue to squeeze prices to zero and expect these products to continue to exist. 2) We think we’re purchasing digital files, but we’re actually licensing them; this may seem limiting and controlling, but it also comes with greater convenience than the old physical medium paradigm in that I can play a song I licensed on multiple devices in my life without much effort — all for the same dollar. This non-ownership of physical media is consistent with where the market is heading, thus 3) worrying about Digital First Sale may be moot as consumers are trending toward a desire for access through subscription or ad-based models rather than “ownership” in any traditional sense. This is also consistent with 4) the inevitable obsolescence of our technologies. I can tell myself I want to “give my music collection to my kids when I die,” but in what form? On a device that will be obsolete? On a cloud server to which I pay a subscription fee? No, I think Digital First Sale is a transient debate where, once again, SV capitalists would like to squeeze a few more nickels out of the process during the transition. They’ll say it’s about your rights, but it’s about their profits.

In sum, I’m glad you’re focusing on privacy; it could not be more important right now. But I would suggest that major rights holding corporations have generally abandoned the notion of seeking individual infringers of their works rather than institutional infringers. Keep writing!

This is a great reply and I agree, there are indeed more salient battles to be waged in the privacy debate. However, that doesn’t mean we can give a pass to a particular privacy-invader just because there are others who are more guilty. I am no apologist for Silicon Valley and the culture of “disruptive innovation” which typically translates to “I want to make a lot of money even if it ruins other people’s lives and businesses.” We’re allowing out-of-control capitalism to eat our economy–not only in California–and the winner-take-all culture is pushing a lot of hard-working people who don’t happen to be techno-entrepreneurs (or financial industry sharks) into painful obsolescence. I don’t see a clear way out of this paradigm, but I don’t condone it and won’t allow self-anointed geek/frat-kings to claim moral authority because they spent a few weeks working late and view the rest of the world as “losers.”

But I won’t walk back my concerns about the entertainment industry’s tactics to defend their business models. It’s debatable where the money has gone in that industry and I’m skeptical about the claims of losses from piracy, even though it’s clear that piracy is rampant. More content is getting created than ever before, which means there are more opportunities for someone to make money from it, even while shedding profits due to unauthorized copying. Economic models that suggest that major publishers/rights-holders are net-poorer than they were 20 years ago are hard to come by because the entire creative economy has changed so radically with the technology. There is still a LOT of money changing hands, even when blockbuster movies wind up on torrent sites before they land in theaters. I’m not defending creative theft, but I question some of the assumptions about who is losing money and who is at fault. Bear in mind that artists have endured at least a century of getting screwed by their publishers, and they need to keep an eye, first and foremost, on that part of the equation as much as focusing on possible losses from the digital copyists.

But here’s the thing: Even when an industry is threatened and bad actors are exploiting new vulnerabilities, from grannies to CEOs, we can’t just casually toss aside important values. Every time we say that it’s okay to further deteriorate privacy standards, for any reason, including coming down hard on an employee’s act of theft, we give comfort to every other type of privacy invasion. We allowed 9/11 hysteria to open the door to outrageous attacks on constitutional and moral rights and we’re all now more vulnerable as a result. The goals were often noble: stop bad people from doing bad things, but once the door is opened, the creeps rush in. We can’t even update ECPA (passed in 1986) to ensure modest privacy in our online communications because law enforcement interests like the loopholes so much for pursuing garden-variety criminals. When one industry starts tinkering with privacy protections “for good reasons,” the entire house-of-cards that is our remaining privacy standards is at risk of collapse. My view is that we need to open our eyes very wide at every attempt to dilute privacy in order to wage the larger war against the emerging culture of privacy destruction.

I don’t think it’s really fair to somehow separate Silicon Valley’s attacks on our privacy from the acts of other corporate titans. They are all of a piece. We allow Facebook and Reddit to socially engineer us into complacence about sharing our personal lives, and that leads to being passive while powerful actors in the entertainment business litigate and broker our digital off-gassing for their own purposes, which translates into resignation about surveillance by government agencies until the ‘reasonable expectation of privacy” is to have none at all.

The fact that we voluntarily share in inordinate amount about ourselves in the new realms of discourse does not make the encouraging of that sharing more defensible, and it certainly does not make the calculated dismantling of our privacy any more justifiable.

As I say, Mike, I’m very glad you’re focusing on privacy in general, and I’m encouraged that you see the economic toxicity of Silicon Valley for what it is, as described in your first paragraph. Having said that, though, I am concerned that, if privacy is your focus, you may be trying to root out (or even conjure) small fish while ignoring the whole ocean. I think it’s fine to stand by your concerns about the “entertainment industry’s tactics,” but that you should be specific and contemporary in your criticism of those tactics as pertains to privacy. You seem to want to take on capitalism itself and an industry “defending business models,” and this trend contains a fatal flaw, blind to the manner in which it feeds the uber-powerful of our times.

You may question the cost of piracy, though the data are pretty clear in music industry with regard to losses. And you may wave the banner of “artists getting screwed by publishers, labels, and studios,” but I would say that is an oversimplification serving as an after-the-fact rationalization for piracy. But more important, I think, is this very dangerous dialogue in which both the conservative and liberal libertarianism of Internet plutocrats translates into “corporations defending outdated business models at any cost.” Yes, there are big flaws with corporate America and Hollywood, and I find it strange that I need to defend both at this time in my life, but it’s because I would rather reform within those models than see society become the world according to Amazon.

We have to be careful when talking about defending business models and Hollywood because those models include some of the better-functioning labor organizations in the country. I would sooner support that industry’s evolution into its next phase than I would see Google & Co’s faux populism produce a new oligarchy that owns production, distribution, advertising, produces very few jobs, and has zero tolerance for labor rights. You think labels and publishers chewed up artists in the past? Please stand by…This is the economic road we’re on, and if the new “anti-capitalist” America looks like Amazon, Inc., we’re hosed in so many ways that you and I can abandon this debate and start scrounging for food in the streets. The big-picture problem with piracy is not a squabble about how much harm it does to producers or what methods are employed to stop it (within reason). The big-picture problem with piracy is that it spawned a whole generation of consumers that no longer relates the price of goods back to labor. They’re getting high on all the free and cheap stuff right now without realizing that they’re helping to destroy their own economic opportunities in multiple business sectors. SV doesn’t want to “disrupt music and TV,” they want to “disrupt everything.” We know this because they keep saying it, and people keep cheering them on. I’m concerned that it will be too late by the time people realize we championed the new Vanderbilts and didn’t even get a railroad in the bargain.

With regard to privacy, I agree we shouldn’t condone abuses anywhere, but you haven’t really demonstrated any abuses of privacy coming from the copyright holders. More critically, though, while focusing your attention there, you risk feeding this perception that civil liberty is being threatened by the likes of Disney while ignoring entities like Acxiom and Palantir. The concern I have is the surveillance society we’re building voluntarily and the public-private data network that goes beyond anything that could have been dreamed up by the KGB. You say “one industry tinkering with privacy” as though perhaps Hollywood is rolling a few stones that will become an avalanche, but the avalanche is already on top of us. And it ain’t all “corporate titans” who own big data. I think it’s time people recognize there are no other corporate titans, and I think it’s very fair to separate Silicon Valley from the rest of the universe in this context.